C-17/71
ECLI:EU:C:1971:124
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JUDGMENT OF THE COURT (FIRST CHAMBER) 15 DECEMBER 1971 1
Leandro Tontodonati
v Commission of the European Communities
Case 17/71
Summary
Officials — Disputes with the administration — Act confirming a previous act — Complaint against such a measure — Period prescribed for appeal against the previous act — No re-opening (Staff Regulations of Officials, Article 91)
A complaint brought against even an re-open the period prescribed under the implied decision which constitutes con Staff Regulations for an appeal against firmation of a previous decision cannot the previous decision.
In Case 17/71
Leandro Tontodonati , an official at the Euratom Joint Research Centre at Ispra, residing at 18 Via Bligny, Varese, represented by Giuseppe Pellicini, of the Varese Bar, with an address for service in Luxembourg at the Chambers of Victor Biel, 71 rue des Glacis, applicant, v
Commission of the European Communities , represented by its Legal Adviser, Louis de la Fontaine, acting as Agent, assisted by Giorgio Pincherle of the Commission's Legal Department, with an address for service in Luxembourg at the office of its Legal Adviser, Emile Reuter, 4 boulevard Royal, defendant,
Application for annulment of the implied rejection by the defendant of the applicant's request to be reclassified in Category B, career bracket B 3/B 2, with retroactive effect from 1 January 1963, and payment of the salary corresponding to this classification,
1 — Language of the Case: Italian.
JUDGMENT OF 15. 12. 71 — CASE 17/71
THE COURT (First Chamber)
composed of: J. Mertens de Wilmars, President of Chamber, A. M. Donner (Rapporteur) and R. Monaco, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure Article 90 of the Staff Regulations to the Commission of the Communities The facts and procedure may be sum requesting that his designation be marized as follows: changed and that he be re-classified The applicant was appointed as Cruel with retroactive effect in Category B Clerk in Grade C 1 (in which he has (career bracket B 3/B 2). remained), first step, on 20 February In the belief that the two months pre 1963. scribed in the second paragraph of On 28 February 1963 the applicant Article 91 (2) of the Staff Regulations lodged a complaint under Article 90 of commenced to run from 15 February the Staff Regulations of Officials of the 1971, he initiated proceedings before the European Communities against the Court of Justice by application lodged classification given in the act of appoint at the Registry on 13 April 1971. ment. In a supplementary statement lodged on After a reminder sent by letter dated 11 June 1971, the Commission, pur 5 July. 1963 to the President of the suant to Article 91 of the Rules of EAEC Commission the latter rejected Procedure, asked the Court to rule on the complaint by letter of 19 September 1963. the admissibility of the appeal without going into its substance and to declare it On 28 April 1966 the applicant sent the inadmissible. Director of the Ispra Centre a complaint The applicant submitted his observations under Article 90 of the Staff Regula tions concerning the difficulties which on the objection of inadmissibility by had allegedly been placed in the way statement lodged on 17 August 1971. of the normal progress of his career. Upon hearing the report or the Judge- The Director of the Centre rejected the Rapporteur and the opinion of the complaint by letter of 25 May 1966. Advocate-General, the Court (First On 28 January 1969 the applicant re- Chamber) decided to open the oral quested the latter to revise his designa procedure on the objection without pre tion and grade. This request was re paratory inquiry. jected by the Director of the Centre by The oral observations of the parties were letter of 25 March 1969. heard on 10 November 1971. Finally, on 13 December 1970, the the Advocate-General delivered his applicant submitted a complaint under opinion on 2 December 1971.
TONTODONATI v COMMISSION
II — Conclusions of the par- sed to the highest administrative ties authority in his institution relied on the same grounds which were The defendant (the applicant on the later adduced in support of the issue of admissibility) claimed that the complaint of 15 December 1970, Court should: especially the fact that his classifica 1. Declare the application to be in tion and related duties did not admissible and reject it without correspond either to those which he going into the substance of the case; was actually carrying out or to his 2. order the applicant to pay the costs. qualifications. The applicant (the defendant on the From the replies given to his com issue of admissibility) contended that the plaint by the Director of the Ispra court should dismiss the objection as Centre on 25 May 1966 and 25 to admissibility raised by the defendant. March 1969, it is clear that he could be promoted only in accordance
III — Submissions and argu with the procedures laid down by ments of the parties on the Staff Regulations of Officials, in admissibility of the particular Article 45 (2) concerning action transfer from one category to another. The submissions and arguments of the (c) Consequently, in relation to the first parties may be summarized as follows: decision in 1963, all subsequent 1. The defendant Commission (applicant replies given to the applicant were as to admissibility) contends that the mere confirmations of that decision. action is inadmissible because it has As there can be no question of an been brought against a non-existent implied rejection in this matter, implied decision rejecting a request because a definite decision had al (silence constituting rejection).
For the ready been taken, and no appeal following reasons, the alleged implied was lodged against it within the decision at most constitutes no more period prescribed in Article 91 (2) than confirmation of the previous deci of the Staff Regulations, it is clear sion of the administrative authority: that the application is inadmissible. (a) After addressing, on 28 February (d) The argument set out above is 1963, a complaint against ids confirmed by the decisions of the appointment, dated 20 February Court of Justice in its judgments of 1963, to the Commission of the 14 April 1970 (Nebe v Commission, EAEC, the applicant should have Case 24/69, [1970] ECR 145) and commenced proceedings before the of 17 March 1971 (Kschwendt v Court within a period of two months Commission, Rec. 1971, p. 251). from the date of the implied rejec
2. The arguments of the applicant tion, namely, on 28 June 1963 at (defendant as to admissibility) may be the latest. For reasons which the summarized as follows: Commission sets out in its statement, (a) Over the years, the applicant has if the period must be regarded as assumed duties of increasing re having commenced to run only from sponsibility and, consequently, the the second half of July 1963, it subject-matter of the complaint of follows that the reply of 19 Septem 15 December 1970 was different ber was given within the period from that of the complaints in 1963, prescribed and constitutes a measure 1966 and 1969. The implied rejec capable of being contested. tion by the Commission of the com (b) The complaint which, on 28 plaint of 15 December 1970 cannot, February 1963, the applicant addres- therefore, be regarded as an act of
JUDGMENT OF 15. 12. 71 — CASE 17/71
confirmation because it was con and of the fact that the Director's cerned with a request based on new reply does not constitute a decision, circumstances. the absence of an answer from the (b) The tact that the request of 28 Commission to the complaint of 15 January 1969 to the Director of the December 1970 may be regarded as Ispra Centre was supported by Mr an implied decision rejecting it and Metzger, Head of the Supply Depart not as an act of confirmation. ment at the Ispra Centre, and by (c) The Commission s view would lead Professor Levi-Sandri represented a to the absurd conclusion that an new factor. In view of the fact that illegal situation still subsisting after the letter of 28 January 1969 to the the rejection, ten years previously, Director of the Ispra Centre is not of a complaint cannot be the subject a complaint within the meaning of of an appeal because it was not Article 90 of the Staff Regulations contested at the time.
Grounds of judgment
1 By letter of 8 December 1970, addressed to the President of the Commission, the applicant lodged a complaint with the object of securing his classification in Category B, career bracket B 3/B 2, with retroactive effect from 1 January 1963. Since he did not receive any reply to the complaint, he brought the present action before the Court in pursuance of the second subparagraph of Article 91 (2) of the Staff Regulations of Officials.
2 In a statement on a procedural issue, the defendant Commission raised an objection of admissibility on the ground that the implied rejection, which was a consequence of the silence of the President of the Commission, was merely confirmation of previous decisions which could no longer be contested.
3 Under Article 91 of the Staff Regulations, appeals against the acts referred to in that article must be lodged within a period of three months. The official concerned cannot revive a limitation period which he has allowed to lapse by lodging a complaint through official channels on the same subject-matter as an act which can no longer be contested and by initiating proceedings before the Court on an alleged implied rejection of that complaint.
4 It is clear from the wording of the complaint of 8 December 1970 that its object was to obtain the applicant's re-classification with effect from 1 January 1963. By decision of 20 February 1963 of the EAEC Commission, com municated on 16 July 1963, the applicant, a servant of the Community since 1959, was 'integrated' as Chief Clerk and classified in Grade C 1, first step, with effect from 1 January 1962. By complaint of 28 February, 1963, addressed to the President of the EAEC Commission, he asked to be classified in a higher grade. He received a reply by letter of 19 September
TONTODONATI v COMMISSION
1963 stating that as the Commission did not find that there was any incon sistency between his grade and the level of his duties, it could not accept this complaint.
5 Neither the decision to integrate him nor the Commission's rejection was challenged within the period prescribed.
6 It is true that, in the course of the written and oral procedure, the applicant contended that at the beginning of 1969 new circumstances arose, which changed his position and justified a re-classification. Nevertheless, the com plaint through official channels, the implied rejection of which is the subject of the present proceedings, sought his re-classification with retroactive effect from 1 January 1963 and relied solely on circumstances which existed prior to 1968. No reference to the new circumstances which are alleged to have arisen in 1969 was made in that complaint and such reference would, more over, be incompatible with its subject-matter inasmuch as it was concerned with re-classification with effect from 1 January 1963.
7 Grounds which have nothing to do with the subject-matter of the complaint of 8 December 1970 cannot be relied upon to support or establish the ad missibility of an appeal against the implied rejection of the complaint.
8 The application is, in consequence, inadmissible.
Costs
9 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs.
The applicant has failed in his submissions.
Nevertheless under Article 70 of the Rules of Procedure, costs incurred by the institutions in actions brought by servants of the Communities are to be borne by the institutions.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Atomic Energy Community;
OPINION OF MR ROEMER — CASE 17/71
Having regard to the Protocols on the Statute of the Court of Justice; Having regard to the Staff Regulations of Officials of the European Com munities, especially Articles 90 and 91; Having regard to the Rules Of Procedure of the Court of Justice of the European Communities, especially Article 91;
THE COURT (First Chamber)
hereby:
I. Dismisses the application as inadmissible;
2. Orders the parties to bear their own costs.
Mertens de Wilmars Dormer Monaco
Delivered in open court in Luxembourg on 15 December 1971.
A. Van Houtte J. Mertens de Wilmars Registrar President of the First Chamber
OPINION OF MR ADVOCATE-GENERAL ROEMER
DELIVERED ON 2 DECEMBER 19711
Mr President After the entry into force of the Staff Members of the Court, Regulations of Officials of the Commun ity, he was appointed an official with the Mr Tontodonati, the applicant in the designation of Chief Clerk in Grade C 1, case on which I have to give my opinion step 1, with effect from 1 January 1962. today, entered the service of the Eura Mr Tontodonati had been aware since tom Commission on 11 September 1958. 28 February 1963 of the decision to ap He was first employed on the basis of a point him, which seems to have been contract concluded in accordance with taken on 20 February 1963. But the the provisions of Belgian Labour Law, official dispatch of the act of appoint but, with effect from 1 March 1959 he ment is dated 16 July 1963, which is the was, with the rank of clerk, subject to date on which he was notified of it. the conditions of employment of other As regards the applicant's duties it servants of Euratom. At his request and should be said that he works in the 'Sup with effect from 31 July 1961, he was plies and Stores' Department at the Re transferred to the Ispra Nuclear Research search Centre. In his 1962 periodic re- Centre, where he is still at present port his duties were indicated by the tide working. 'adjoint responsable pour la section
1 — Translated from the German.